As a Feminist political scientist, I argue that not all people are created equal under United States law. This is because as a Mexican American woman I have lived, observed, and studied how/why some people are priviledged, allowed access to resouces, opportunities and institutional power-making decisions while ‘others’ are not. Feminist political theorist Zillah Eisenstein accurately notes, “we need a starting place other than Jefferson’s ‘all men are created equal,’ because it leaves us with a vision that equality can be articulated through a homogenous standard: men.” The point of deconstructing the “standard” is not simply to incorporate women into the law. Women have different needs since we have different bodies, experiences, and perspectives therefore, a more nuanced approach is necessary than demanding exact equality with men. The state is a sexist institution from its ideological core. Displacing men’s exclusive priviledge from inside the core is more productive than attempting to add women within the state’s sexist framework. In other words, women have different conceptions about pregnancy and rape than do men and our expetise should be inculcated into the state’s ideological core, instead of only aiming to incorporate greater numbers of women within the state’s legal system.
The central question investigated assumes a Radical Feminist lens; what’s the state’s ideological core from the perspective of women in Eisenstein’s second chapter of The Female Body and the Law and MacKinnon’s Towards a Feminist Theory of the State and how can we re-imagine a Feminist ideological core for the state? The state is a patriarchal apparatus from multiple viewpoints, but I will specifically focus on power and women’s exclusion from the gender “neutral” legal theories. In Part I, I zoom into the Hobbesian definition of power and how a woman’s standpoint formulated from the experience of having a pregnant body can re-establish a different understanding of what power is, as well as reimaging the legal ideological core with a Feminist analysis. In Part II, I analyze the male-centered theory behind rape laws as an attempt to further Catherine MacKinnon’s project of constructing a Feminist theory of the state by including women’s experiences with rape. The absense of women’s bodies and experiences from the state’s ideologies are clearly responsible for protecting men’s privacy at the expense of women. The perpetraitor regards rape as his male right, while the state legitimizes and protects his right.
Part I: Power and The Pregnant Body
Hobbes defines power as the passions.
“The causes of this difference of wits, are in the passions; and the difference of passions proceedeth, partly from the different constitution of the body…The passions that most of all cause the difference of wit, are principally…the desire of power, of riches, of knowledge, and of honour. All which may be reduced to the first, that is, desire of power.”
If the Hobbesian narrative on power is argueably one core ideology behind the state, then it has failed to explain the reality of women’s lives because it does not account for the female body and the complexity of pregnancy, even when referring specifically to “the body.” Clearly, Hobbes was never pregnant and his writings reflect an ignorance of women’s realities. In certain cases where women choose pregnancy, it is not a matter of power play, but of giving life. Bringing a child to birth is about love for another as much as it is about loving the self; not power, not riches, not knowledge, not honour. It takes setting aside the self’s identity, wants, or needs to priviledge the internal ‘other.’ Consider this; sometimes our lives are genuinely enriched by supporting others rather than our own self-interest. My point is not to essentialize the pregnant or female body but to suggest an alternative to the current political narratives and open up possibilities for pragmatic discourse in the theory of the law which inadequately defines men as the standard.
Women are deeply shaped through their exclusion of the state’s core narratives and definitions of power when they encounter the law as defendents, plaintiffs, judges, lawyers, etc. Men cannot set the standard of humanity within law because they systematically exclude the pregnant body, important to women. The Hobbesian male thinks power is expressed through aggression, greed and coersion because the self deserves everything. The Eisensteinian Feminist thinks power is moreso about relationships through “radical egalitarianism” because the other was first part of the body of another woman before she/he became independent. All people come from a woman, a pregnant body, but this is not the basis for today’s legal core narrative.
Part II: Rape within the State’s Core Narratives of the Private Domain
Catherine MacKinnon suggests there is no public or private sphere for women because rape data disproves the safety of the home and the “protection” men offer in the home is not always benevolent. More women have been raped by someone they know, than by someone they don’t. The majority of rape vicitims happen to be female and men are more likely to be doing the raping. The private domain from a MacKinnon Feminist standpoint is only private for men, at the expense of women’s well-being. The private versus public divide means the state acknowledges that it is prohibited from entering the bedroom of individual men and regulating their behavior, even if it is violent, such as the case of marital rape. MacKinnon elaborates,
“From a woman’s point of view, rape isn’t prohibited; it is regulated. Even women who know they have been raped don’t believe that the legal system will see it the way they do…Rather than determining or avenging rape, the State…perpetuates it.”
MacKinnon orients the readers attention to women’s different experiences with rape rather than assuming the male-given interpretations. The misogynistic core Liberal ideology behind the law is responsible for teaching that; “women is part of nature; man like law, must sometimes tame and control her.” When a woman reports a rape but has little evidence to prove it, her accusation is hastily discredited. Rape is not taken seriously as a crime because it is considered a violation only by the woman whose personhood is not the standard for the law, therefore upholding men’s right to privacy and rape. When faced with a trial, rape survivors are often re-traumatized/ “raped again” by the incredulty of the court, the rapist’s legal council, and the media. The legal system treats rape survivors as if they had committed a crime against the privacy of their perpetraitor. “In conceiving a cognizable injury from the viewpoint of the reasonable rapist, the rape law affirmatively rewards men with aquittals for not comprehending women’s point of view on sexual encounters.” The majority of rape cases go unreported, and from those that are reported, greater than half never make it past the District Attorney’s office.
What would a Feminist revision of this private divide within the state’s core ideology look like? Certainly, women’s accusations of rape would be taken seriously if men weren’t priviledged as the law. The protection of rapists must end by deconstructing the state’s role in regulating men’s right to tame women through sexual force. Instead of equating men with law and women with nature, Feminists Eisenstein and MacKinnon regard gender as socially constructed by men. To re-construct gender according to both women and men, the personhood of pregnant women under the law and rape laws must change.
Conclusion:
One meaningful reason why Feminist political scientists should de-center the male body within the state’s misogynistic core narratives is because women’s continued exclusion from public positions of authority that are esteemed to interpret the law as “fact” such as judges, committee chairs of Congress and the Senate, not to mention law professors, have a serious impact upon women’s lives. The majority of key governance positions are reserved for men only, one obvious example is the current presidency of the United States. By simply adding more women into the legal system, Feminists will not be able to accurately challenge the legal rape discourse, nor advocate for the rights of pregnant women, including the right to terminate pregnancy. Feminists need a theory of the state, a new ideology about power, pregnancy, the private domain and rape.
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